Banamali Das v. Rajendra Chandra Mardaraj Harichandan & Ors.

CHANDRA CRUD, J .-Six candidates contested the mid-term election to the Orissa Legislative Assembly from the Ni!giri constituency. The polling was held on February 26, 1974 and on March 1 the result of the election was declared. The appellant who contested the election on the ticket of the Communist Party of India (Marxists) was declared as the successful candidate. According to the results declared on March 1, the appellant secured 14346 votes while respondent 1 who con-tested the election on the ticket of the Bharti Lok Dal secured 14297 :'Otes. The other contestants, respondents 2 to 5, secured votes rang-mg between 12,312 and 5961. Respondent 6 is1 the Returning Officer.

On April 13, 197 4 respondent 1 filed an election petition under section 81 of Representation of the People Act 1951 (hereinafter called. "the Act") _challenging the election of the ~ppellant and praving th~t, mstead, he himself should be declared as the successful candidate. Th~ appellant's election was challenged by respondent 1 on the ground, mainly, that through an error the Returning Officer did not enter the results of the second rouud of counting on Table No. 13 in Form No. 20, ~s prescribed bv Rule 56(7) of the Conduct of Election Rules 1961. It was alleged that instead of incoroorating the results of th~ second round of counting on Table No. 13 in Form No. 20, the Returing Officer wrongly incorporated the results of the second round of counting on Table No. 14 in the column meant for the correspond-ing count of Table No. 13 .. In other words, the allegation was· that the results of the second round of couhting on Table No. 14 were erroneously entered twice in Form No. 20, once as against the second round of Table No. 14 and once as against the second round of Table No. 13 ..

The appellant denied this allegation contending that he had secured the largest number of votes and that there was a clear difference of 49 votes between him and respondent No. 1. The appellant also raised several other contentions touching the maintainability of the election petition on the ground of non-compliance with statutory requirements.

On these pleadings, the learned Judge of the High Court of Orissa, Cuttack, who tried the election petition framed 8 issues but they were re-cast after the evidence was recorded. Issues Nos. 1 to 5 pertained to the maintainability of the election petition aP;d on these issues the learned Judge found in favour of respondent J. Those findings are not challenged before us and, therefore, we must proceed on the basis that the election petition as presented did not suffer from any illegality.

Issues Nos. 6 to 8 are the ones with which alone we are concernd in this appeal and those issues arise out of the contentions in regard to the entries made. by the Returning Officer in Form No. 20. The ninth issue is consequential.

Respondent l examined himself and one Khagendranath Naik who was his Counting Supervisor on Table No. 13. On behalf of the appellant, an election agent and a counting agent of his were examined as witnes~es. Neither party examined the Returning Officer nor indeed did the Returning Officer who was respondent 6 to the petition offer to give evidence oni the question as to whether the resu1ts of the second round of counting of Table No. 14 were erroneously entered as against the corresponding column of Table No. 13.

During the hearing of the petition, the learned Judge inquired of the oarties whether they were agreeable to a recount being takell of all the ballot oapcrs. Counsel appearing for the appellant and re~pon­ dents 1 and 2 agreed to the course suggested by the learned Judge. Respondents 3 to 5 who had con'ested the election but were defeated did not appear at the trial nor indeed did the Returning Officer. On Februarv 3, 1975 the learned Judge passed an order directing that "the entire ballot papers should he recounted".

The ballot papers were accordinQly sent for. Twenty.one sealed trunks were .received bv the court and the recounting was done by the Deputv Registrar of the High Court in the presence of the counsel for '.he contending oarties. After the recount was taken, the Deputy Reg1st,,1r submitted a detailed renort which was made a nart of the record under an order passed by the learned Judge on February 21 1975. ' '

In view of the fact that the find~s recorded by the learned Judge in favour of respondent 1 on issues 1 to 5 are not challenge~ before us, the only question for decision is whether respondent 1 has d1scha_rg-ed the onus of proving that the result of the second round of countmg on the 13th Table was not at all recorded in -Form No. 20 and whether the result of the second round of counting on-Table No. 14 was erron-eously entered as against the second round of Table No. 13.

Section 64 of the Act provides that at every election where a poll is taken votes shall be counted by or under the supervision and direc-tion of lhec returning officer and each contesting candidate, his electioDI agent and his counting agents, shall have rii;ht to be present at the time of counting. Section 169 of the Act which empowers the Central Government after consultation with the Election Commission to make rules for carrying out the purposes of the Act provides by sub-section (2)(g) that such rules may provide flor the scrutiny and counting of votes. Rule 56(7) of the Conduct of Election Rules, 1961 provides that after the counting of all ballot papers contained in all the ballot boxes used in a constituency has been completed, the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars. Form 20 called the "Final Result Sheet" requires the re· turning officer to enter therein the total number of valid votes recorded for the various candidates as also the total number of rejected ballot papers, at each round separately.

In order to avoid errors in counting of votes, the Election Com-mission has compiled a hand-book for the use of returning officers containing instructions for their guidance at various stages of the elec-tions. Before the results of the electiori are entered in Form No. 20, it is neces_sary that a record be maintained of the result of counting of 'each round. Paragraph 14-B in Chapter VIII of the hand-book directs that the officer-in-eharge of distribution of the ballot papers for count-fog >hould take out a sufficient number of bundles from the drum so as to make up 1000 ballot papers and distribute them to each table for counting at each round. After the counting of every such thousand ballot papers is over, the bundles are given back to the supervisor of the counting table with the "Check Memo" duly filled in and signed by the assistant. The Check Memo shows the votes polled by the various candidates in the particular ronnd as also the total number of rejected votes. When the distribution and counting of bundles is thus completed on all the counting tables, one round of counting is said to be over: The _next round of counting will then begin. The same pro-cedure is reqmred to be followed for every round of counting so that the result of each round of counting on each table is reflected in the Check Memo rel~ting t? each round. As many Check-Memos as many rounds of counting. fhe form of the Check Memo is at annexure XII-A and a sample form duly filled in is at annexure XII-B of the hand-book. These forms are not prescribed by the Act or the rules made thereimder but the directions in regard <hereto have to be carried out on the mstrucl!ons of the Election Commission in which the over-all control and supervision of elec'ions is vested. The directions and forms contained in the hand-book for the use of returning officers are intended to facilitate the holding of fair and error-free elections and no objection can be taken to either.

The original Check Memo of the 13th Table in which results of the second round were entered was not produced during the trial but a certiikd copy thereof was admitted in evidence a~ E~ .. 1, subject to the objection raised by the appellant as to its admissibility. There is B· no substance in that objection. Section 7 4 of the Evidence A\:t provides that documents forming the acts . or records .of the acts of public officers are. public documents. Section 76 provides th~t every public officer havmg the custody of a pubhc document which any person has a right to inspect shall give that perso!). a copy of it tc-gether with the certificate that it is a true copy of the document. By section 77, such certified copies may be produced in proof of the con-tents of the documents of which they purport to be copies. The Check Memo which is required to be maintained by the officer in charge of the counting table is a document forming record of the acts of a public officer and therefore, a certified copy thereof given by the Collector in whose custody the document is kept, can be admitted in evidence in proof of the contents of .the original document.

The certified copy (Ex. I) of the Check Memo concerning the second round of counting on Table No. 13 shows that 40 bundles each containing 25 ballot papers (i.e. 1000 ballot papers), were distributed for counting in the second round. Part I of Ex. 1 contains these deiails. Part II of Ex. 1 shows the result of counting at the second round. According to the entries contained therein, the appellant se-cured 21 valid votes, respondent 1 secured 86, while respondents 2 to 5 secured 304, 7,, 15 and 524 votes respectively. Forty-two ballet papers were rejected, thus making up a total of 999 ballot papen. Evidently, there was an error regarding one ballot paper either at tho stage of distribution or at the stage of counting. What is relevant is not that there was an error in the counting of one ballot paper but that the result of counting which is entered in the Check Memo ought to have been incorporated in Form No. 20 in the appropriate column. Surprisin~ly, in Form No. '.W, the votes secured by the various candi-dates in the second round of counting on Table No. 13 were shown as : the appellant-144 votes instead ofl 21; respondent 1-109 votes instead of 86; respondent No. 2-360 votes instead of 304; respondent No. 3-- 19 votes instead of 7; respondmt No. 4-74 votes instead of 15, and respondent No. 5-225 votes mstead of 524. In short, whereas the appellant had truly secured 21 votes only in the second round of count-ing on Table No. 13, the Final Result Sheet., Form No. 10 showed that he had secured 144 votes; and whereas respondent No. 1 had secured 86 votes, he was shown to have secured 109 votes. The error was favourable to both the parties but whereas the error in favour o t the appellant was to the extent of 123 votes, that in favour of respon .. dent 1 was to the extent of 23 votes only. As the appellant was dee .. Jared to have won the election by a man~in of 49 votes orily over res-· pondem 1, it is plain that respondent 1 and not the appellant had. polled the largest number of votes.

A mere look at the entries in Form No. 20 relating to the second round of counting on Table Nos. 13 .and 14 would disclose. the error committed in making the entries therein. The entnes made m respect of Table No. 14 were accur>ite, but precisely those very figures were through some error carried to the secor..ct round of Table No. 13. It can seldom happen that five contesting candidates would se.cure prcc1-j, sely the same number of votes in the same ro·und .of ~ountmg on two

different tables, when a thousand ballot papers are d1stnbuted to the two tables by picking them up at random from a common drum or reccp-iacle. It is, however, unnecessary to speculate about any such possibi-t lily because it is incontrovertible that entries in the Check Memo re-

lating to the second round of counting on Table No. 13 were not trans-ferred to the apprnpriate column of Form No. 20. We therefore up-hold the finding of the learned Judge that the result of the second round of the 14th Table came to be recorded twice and that the true result. of the second round of counting on Table No. 13 was entirely omitted while making entries in Form No. 20. It must follow that res-pendent 1 has secured the maximum number of valid votes and is there-K fore entitled to be declared as the successful candidate.

This really should be an end of the matter because the only ground I on which respondent 1 had challenged the appellant's election 'vas

that the relevant entries in Form No. 20 did not reflect the true picture. I But the order passed by the learned Judge that a recount shall be taken

of all the ballot papers has furnished to the appellant an opportunity I to raise a doubt, here and a doubt there regarding the manner in which

the votes were counted and the ballot papers preserved. In our opinion J the learned Judge was in error in directing, merely because his sugges-

I tion was accepted by the parties appearing before him. that the court

should take a recount of all the ballot papers. Respondent 1 who filed the election petition had not asked for such a recount and the defence of the appellant to the petition wa9 that the entries in Form No. 20 i reflected a true picture and contained no error. The consent to the

recount was given onJy by the appellant and respondents 1 and 2. The other respondents who had contested the election did not appear at the trial of the election petition but they certainly had no notice that. a >!k' recount would be suggested or accepted when there was no plea about

,it in the pleadings of the parties. The learned Judge widened unduly the scope of the election petition and landed himself into an unforeseen difficulty or having to decide noints on which there was neither a plead-ing nor an issue. After the Deputy Registrar submitted his report, the learned Jud~e felt "serious douhts ahout the correctness nf the recount" but all that he did in order to allay those doubts was to take a re-recount i of a packet of votes where he thought the error of the recount could '1 with assurance be located. And so we have to countenance an argu-

ment based on no pleadings, arising out of no iss,ues and founded solely on errors, real or 'Supposed, which are said to have happened to see the light of the day as a result of the recount and the recount. Even election petitions must end at some stage and they cannot, for the reason that ele".1ions are a democrntic venture, be permited to procreate paints dunng the course of their pendency. As we were listening to the appellant's argument, we thought we were hearing an ,independent elec-tion petition filed by the appellant in order to challenge the result ofl the recount.

Mr. Somnath Chatterjee, appearing for the appellant, argued that the facts which have emerged out of the recount throw considerable doubt on the manner in which the election was held and therefore in-stead of declaring respondent No. l as the successful candidate we should order that a fresh election be held. Election9, says the learned counsel, are not a matte_r of technicalities and the court must sat.isfy. its conscience that the elect.ion before it was free and nair. Justice mav be a matter of the Judge's conscience but even a strong and sensitiv;, conscience mu•t not brook an endless litigation in which parties w;ill fish for new challenges based on accidental discoveries of no more than plausible points to ponder. The new errors on which the appellant now relies have an air of plausibility and no more. The new argument founded on those errors must therefore fail.

As respondent I truly secured the maxjmum number of votes1 and as the appellant was, through an error, shown to have secured the maxi-mum number of votes, we must uphold the judgment of the Clrissa High Court setting aside the appellant's election and declaring respon-dent J as the successful candidate.

The appeal is accordingly dismissed with costs in favour of respon-dent l.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 576 of 1975. From the judgment and order dated the 6th March, 1975 of the Orissa High Court in E.P. No. 3 of 1974.

:Somnath Chatterjee, and Ratin Das, for the appellant.

Vinoo Bh~at, for the respondent.